Every individual is owed to legal rights that the state is mandated to honor. There has to be a balance between the law of the land and individual rights. The due process therefore protects the rights of individuals from the law of the land. The state is expected to follow the exact rule of law when handling individual suspects in order to avoid violating the due process. The bill of rights is incorporated into the due process meaning that persons cannot be dispossessed of their rights to life, liberty, and own property without following the due process.
In order to follow the due process, the judiciary and the executive branches of the government have to base decisions on the constitution. This is where the rights of individuals are clearly defined. The due process, when observed, has to be consistent with provisions of the constitution. An individual is therefore assumed innocent until otherwise proven guilty. The criminal procedure involving the adversarial system requires an accused and the prosecution to present their positions before a judge or a jury. The judge and the jury are considered to be impartial and are expected to determine how genuine the cases presented are.
The due process is mainly procedural meaning an orderly process must be followed to observe the rights of individuals according to the constitution. However, establishing the laws does not necessarily require the due process to be followed. The due process only prevents the government from infringing upon the rights of individuals. In other cases, the constitutions may allow the arms of government to act in deprivation of the bill of rights but the individuals still have a right to a court hearing where they bring a suit against the government.
An accused person therefore has a right of a hearing before being labeled guilty from the accusations by an arm of government. For instance, there are laws that prevent an individual from being served alcoholic drinks in a bar due to being a habitual drunkard. However, a state cannot make a public notice naming citing an individual as a habitual drunkard without giving a hearing chance. The adversarial system therefore entails the procedural part of the due process. This is where two advocates make representation for each side of a court case. The two sides include the prosecution and the defense. Each advocate representing the sides has the task of convincing the impartial party, the jury or the judge, that their point of view on the case is true and honest.
The role of the judges in an adversarial system is to ensure that there is fair play in observance of fundamental justice or the due process. The decisions that the judges or the jury make are on many occasions influenced by the counsel despite the fact that the judges have their judicial discretion. This is because there are higher chances of abusing the discretion and making decisions that are openly biased. When decisions are biased then this raises questions upon the credibility of the judicial system and hence the due process fails to be observed.
An accused individual is subject to rights according to the provisions of the due process. Presumptions of innocence and the right to a legal counsel are provided by law. These two are the basic rights of an accused individual. The presumption of innocence means that the accused is assumed to be innocent until proven guilty by the prosecution. Therefore, the encumbrance of proof is placed upon the prosecution to convince the judges or the jury that the accused is undoubtedly guilty.
The accused individual also has a right to be represented in the court proceeding by a lawyer. Even in cases where an accused is unable to afford a private lawyer, they still have a right to a public advocate who is paid by the government. Even after a crime has been committed through the post arrest procedure, the accused individual is still subjected to basic rights. An arrest cannot be made without a warrant of arrest. However, there are cases where an arrest could be warrantless. These mainly include arrests made as a result of a probable cause.
Once arrested, the defendant has to be in excellent condition before he or she is booked in a jail. No matter how injured the accused is, he or she deserves the right to life. It is the mandate of the government to ensure that the arrestee receives medical attention before being booked. The properties of the arrestee have to be kept in proper care by the arresting arm of government. Even after being booked, the arrestee is entitled to make unmonitored contact calls to their attorneys, bail people and one of their relatives. This is because the arrested individual can decide to be bailed out on bond. The due process therefore is used in both civil cases and criminal prosecutions to govern the way procedural rights are guaranteed.
References
Hale, S. (2006). The Discourse of Court Interpreting: Discourse Practices of the Law,
the Witness and the Interpreter. Routledge.
Kadish, S. (1988). Methodology and Criteria in Due Process Adjudication:A Survey and
Criticism. Yale Law Journal , 319-363.
Stephen, B. (2009). Active Liberty: Interpreting Our Democratic Constitution. Boston:
Knof.
